SZWBC v Minister for Immigration

[2017] FCCA 2913

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZWBC & ORS v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2913

Catchwords:
MIGRATION – Application for review of former Refugee Review Tribunal decision – show cause hearing – whether there are reasonable prospects of success – no reasonable prospects of success – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 425, 426A, 476

Federal Circuit Court Rules 2001 (Cth), rr.1.06, 44.12, 44.13

Cases cited:

SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; (2013) 212 FCR 235

General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125
Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598
Applicant A135/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 708
Applicant A163/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 677
Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62
Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552; (2000) 173 ALR 665; (2000) 74 ALJR 1219
Xie v The Immigration Department [1999] FCA 365
Minister for Aboriginal Affairs v Peko Wallsend Ltd[1986] HCA 40; (1986) 162 CLR 24
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593
Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389

First Applicant: SZWBC

Second Applicant: SZWBD

Third Applicant: SZWBE

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 242 of 2015

Judgment of: Judge Nicholls

Hearing date: 9 October 2017

Date of Last Submission: 9 October 2017

Delivered at: Sydney

Delivered on: 9 October 2017

REPRESENTATION

Applicant: In person

Solicitors for the Respondents: Mr M Andras of Australian Government Solicitor

ORDERS

1. The name of the second respondent is amended to read “Administrative Appeals Tribunal”.

2. The application made on 2 February 2015 is dismissed pursuant to Rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

3. The adult applicants pay the first respondent’s costs set in the amount of $3,416.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 242 of 2015

SZWBC

First Applicant

SZWBD

Second Applicant

SZWBE

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised from Transcript)

1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 2 February 2015, seeking review of the decision of the then Refugee Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”) which, on 24 January 2015, affirmed the decision of the Minister’s delegate (“the delegate”) to refuse protection (Class XA) visa to the applicants.

2. In evidence before the Court is a bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”).

3. The relevant background is as follows. There are three applicants before the Court. The first and third applicants are husband and wife. The second applicant is their son (CB 114). [Before the Tribunal, the third applicant (the first applicant’s wife) was referred to as “[a]pplicant 2” (see CB 216). Therefore, references to the “third applicant” in this judgment are also references to who the Tribunal referred to as “[a]pplicant 2”.]

4. The applicants are all citizens of China. The first applicant initially applied for a protection visa on 23 September 2009 which was refused by a Ministerial delegate on 22 December 2009 (CB 1 to CB 12) (“the first protection visa application”). The first applicant applied for review to the former Refugee Review Tribunal which affirmed the decision of the Minister’s delegate on 25 February 2010 (CB 25 to CB 36). The first applicant applied for the visa using fraudulent documents and claimed to have arrived in Australia illegally by boat. The first applicant did not declare his spouse on the visa application form.

5. The third applicant applied for a protection visa on 7 May 2010, and that application was refused on 3 August 2010 (CB 13 to CB 24). The third applicant then applied for review to the Tribunal which affirmed the Minister’s delegate’s decision on 19 November 2010 (CB 37 to CB 51). In her visa application, the third applicant stated that her ex-husband was living in Australia.

6. The second applicant was born in Australia on 20 May 2011 and his parents applied for a protection visa on his behalf which was refused on 6 January 2012 (CB 57 to CB 71). The second applicant (through his parents) applied for review to the Tribunal, which affirmed the Minister’s delegate’s decision on 31 October 2012 (CB 72 to CB 112).   

7. Following the decision of the Full Federal Court in SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; (2013) 212 FCR 235, the applicants made another application for protection visas (“the second protection visa application”). The application was received by the Minister’s department on 8 October 2013 (CB 113 to CB 153). The applicants were assisted in making their applications by a registered migration agent (CB 122). The second and third applicants applied for the visas as members of the first applicant’s family unit.

8. In the second protection visa application, the first applicant indicated that he had initially travelled to Australia on a visitor visa issued in Budapest and arrived in Australia on 10 October 2008 (CB 127). The first applicant was invited to, and attended, an interview with the delegate on 8 April 2014 (CB 160 to CB 162 and CB 171.9). The delegate refused the application for the visas on 8 April 2014. The applicants were notified by letter of the same date sent to the first applicant (CB 163 to CB 177).

9. The applicants applied for review to the Tribunal on 1 May 2014 (CB 178 to CB 180). The applicants were represented at the time by a registered migration agent (CB 179 to CB 180). The applicants were invited to attend a hearing before the Tribunal on 12 December 2014 (CB 184 to CB 187). Only the first applicant attended the hearing before the Tribunal (CB 188 to CB 191 and [8] at CB 204).

10. The Tribunal affirmed the decision of the delegate on 24 January 2015. The applicants were notified by letter dated 27 January 2015 and sent to their representative authorised for that purpose (CB 200 to CB 221).

11. In the second visa application (which led to the decision affirmed by the Tribunal whose decision is before the Court now), the first applicant claimed to fear harm on the basis that he was a Christian, and that he had worked at Fuqing Electrical Power Limited Company, and that he was an “activist” who had made complaints about the employees’ welfare. The first applicant claimed to have made complaints to government officials about the general manager who took “short cuts” in breach of workplace safety requirements (CB 205.6).

12. The first applicant claimed that the general manager associated with “thugs” who “intimated” (sic) [“intimidated”] him and his family, and that the general manager was also “linked” to government officials who imposed further financial burdens on his family’s shop. Following this, the first applicant claimed to have left for Hungary (CB 205.7).

13. The first applicant claimed that the general manager had been jailed “for a while” but was subsequently released, and he and his associates had been “looking for the applicant” (CB 205.9). The first applicant fears that the “thugs, police and government officials” linked to the general manager will harm him if he were to return to China (CB 206.1). At the Tribunal hearing, the first applicant made a further claim that he would be discriminated against on return to China because he had been out of the country for a long time, and may be viewed as a failure and harassed for this reason ([13] at CB 206).

14. The Tribunal did not find the first applicant to be a “credible, truthful, or reliable witness”, and was “concerned” about the first applicant’s “non-credible” evidence, particularly in relation to his work colleagues, whom he claimed had been subjected to harassment ([32] at CB 208 to [34] at CB 208 to CB 209). The Tribunal also had a number of concerns with the first applicant’s evidence and “actions in light of his claimed circumstances” ([35] at CB 209). The Tribunal put its concerns to the first applicant at the hearing.

15. First, the first applicant failed to claim asylum in Hungary from December 2006 to August 2008, or while travelling to other European countries during that period. In light of the first applicant’s response, the Tribunal considered that this indicated he did not have a “genuine fear of harm” ([37] at CB 209 to CB 210).

16. Second, the Tribunal was “concerned” that the first applicant had returned to China twice since leaving in 2008. After putting its concerns to the first applicant, the Tribunal did not find the first applicant’s responses “persuasive” and also found his oral evidence to be inconsistent and to undermine his credibility ([38] at CB 210 to [44] at CB 211).

17. Third, the Tribunal put to the first applicant that it was “concerned” about the delay in leaving for Australia after he was granted a visitor visa in 2008. In light of the first applicant’s response, the Tribunal considered that the delay undermined his credibility ([45] – [46] at CB 211).

18. Fourth, the Tribunal was also “concerned” about the first applicant’s delay in lodging his (first) protection visa application after he arrived in Australia. The delay was almost one year. The first applicant claimed to have had no friends and “didn’t know this information”. The Tribunal considered that if the matters that he claimed had occurred to him, had indeed occurred, then he would have made relevant enquiries earlier ([47] at CB 211 to CB 212). The Tribunal put other concerns it had with the inconsistencies in his application form and oral evidence to the Tribunal to the first applicant at the hearing. The first applicant’s responses were not “persuasive” and the Tribunal considered that they undermined his credibility ([48] at CB 212).

19. On the basis of its adverse credibility finding, the Tribunal did not accept the claims made by the first applicant about the events surrounding the electricity company and the general manager. The Tribunal did not accept that the claimed events were “true”. The Tribunal did not accept that the first applicant fled China out of fear, or had any such fear when he travelled to Australia ([54] – [55] at CB 213).

20. The Tribunal indicated that the first applicant provided no evidence to support the claim that he would be discriminated against on return to China because he had been out of the country for a long period. Further, considering its adverse credibility finding, it was not prepared to accept the first applicant’s claim in this regard. The Tribunal also did not accept that the first applicant would not be able to work on return to China ([56] at CB 213 to CB 214 to [57] at CB 214).

21. The Tribunal also considered “[c]laims made in past proceedings” ([61] at CB 214 to [65] at CB 215). These concerned the first applicant’s claim to having been involved in an underground Christian church. The Tribunal indicated that it gave the first applicant “numerous opportunities” to discuss these claims at the hearing, and upon questioning the first applicant, he confirmed that the only claims that he relied on were those relating to “the work issues” ([62] at CB 215.

22. As is clear, and as mentioned earlier, the first applicant had previously applied for protection. At the time of the first protection visa application, the relevant criterion for the grant of a protection visa was based on the Refugees Convention. [Essentially the equivalent to the current criterion at s.36(2)(a) of the Act.] For current purposes, the Tribunal was not satisfied that the first applicant faced a real risk of significant harm on return to China and therefore did not satisfy the complementary protection criterion in s.36(2)(aa) of the Act. It affirmed the delegate’s decision on this basis. On the evidence before the Tribunal, the second and third applicants also did not meet the relevant criterion for the grant of the visas as his family members.

23. The application to the Court is in the following terms:

    “1. The decision of the Tribunal relied upon the previous decision regarding the credibility to infer the claims of protection visa under Complementary Protection Criterion:

    a) is affected by the procedural unfairness.

    b) failed to take into account relevant considerations.”

24. By orders made by a Registrar of the Court on 25 February 2015, the applicants were given the opportunity to file any amended application and evidence by way of affidavit. The applicants filed no further documents. Orders were again made by a Registrar of the Court on 4 November 2015, and given the stated ground of the application and the absence of any amendment to that application, the Registrar set the matter down for a show cause hearing pursuant r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the FCC Rules”). I note also that the matter was subsequently relisted for hearing today. The parties were also required to file written submissions before the hearing. The applicants have filed no written submissions. The Minister filed written submissions on 3 October 2017.

25. When the matter was called today, the first applicant appeared in person with the assistance of an interpreter in the Mandarin language. The Minister was represented by a senior solicitor.  The third applicant (the first applicant’s wife) did not appear, but I was satisfied on what the first applicant submitted from the bar table that she knew of the Court event today, and that he had come to speak on her behalf. In relation to the second applicant, their child, the first applicant was appointed as his litigation guardian for the purposes of these proceedings. 

26. The issue before the Court is whether the grounds of the application raise an arguable case for the relief sought. I note in this regard that the applicants seek orders that the Tribunal’s decision be quashed and returned to it for reconsideration.

27. If the Court cannot be satisfied that an arguable case is raised against the first respondent the application will be dismissed. It is the case that the Court’s power should be exercised with great caution. Given the summary nature of any such dismissal the application should only be struck out where there is no real question to be tried, where the claims are clearly untenable and cannot succeed (General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 especially at [8] – [9], Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598, Applicant A135/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 708 at [3]– [6] and Applicant A163/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 677 at [1]), the claims are groundless (Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62), where there is a high degree of certainty about the outcome (Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552; (2000) 173 ALR 665; (2000) 74 ALJR 1219) or it is a hopeless case that would fail if it were to go to a final hearing (Xie v The Immigration Department [1999] FCA 365).

28. That is, that such a dismissal, having regard to the stated ground, should only be made if there is no discernible legal argument that arises on the evidence before the Court.  As mentioned earlier, the first applicant appeared in person and raised a number of matters orally in submission, which I will return to later. 

29. The applicants’ ground of review, as stated in the application, is not particularised.  It is expressed in general terms. However, given that the applicants appeared unrepresented, I sought to give them as much “leeway” as possible in their attempt to assert legal error on the part of the Tribunal. In that light, I agree with the Minister that there are at least three elements that appear to emerge from the applicants’ ground.

30. First, the Tribunal is said to have relied on a “previous” decision to find adversely to the first applicant’s credit.  The difficulty for the applicants is that they have not identified, by way of any particulars to the ground, what this decision could be.  That is, whether it was the delegate’s decision, or earlier Tribunal decisions, involving any, or all of them. 

31. In any event, on the evidence that is before the Court, this complaint fails at a factual level. This is because on any plain reading of the Tribunal’s decision record, it gave comprehensive reasons, derived from a lengthy assessment of the evidence before it, for finding that the first applicant was not a witness of truth. 

32. As the Minister’s solicitor submitted today, correctly in my view, simply because a number of Ministerial delegates and Tribunal members have made a similar finding that the first applicant was not a witness of truth, does not necessarily lead to the conclusion that this particular Tribunal did not make a finding independent of those other Ministerial delegates and Tribunal members.  On the evidence before the Court, the Tribunal member in this case did turn her mind to the evidence before her, and gave comprehensive, and cogent, reasons as to why the first applicant was found not to be a witness of truth.

33. The second element that can be said to emerge from the ground put before the Court is that the decision is affected by procedural unfairness.  Again, no particulars, let alone any evidence, have been provided to support this claim.  As mentioned earlier, the applicants were given the opportunity by orders made by a Registrar of the Court to file any amended application and provide evidence by way of affidavit. They have not taken up those opportunities.  Although not entirely clear, the first applicant appears to have sought to address the matter of claimed unfairness in oral submissions before the Court. I will deal specifically with the first applicant’s oral submissions to the Court shortly.

34. In the meantime, if the complaint were to be understood as being that the Tribunal proceeded to determine the matter without the first applicant’s wife (the third applicant) and the first and second applicants’ son (the second applicant) attending the hearing before it, then in the circumstances, no arguable case for the relief sought is raised.

35. On the evidence before the Court, the Tribunal invited all three of the applicants to the hearing, pursuant to s.425 of the Act. The invitation complied with all of the relevant statutory and regulatory requirements. At the scheduled time for the hearing, the first applicant’s wife (the third applicant) and child (the second applicant) did not appear at the place of hearing. Nonetheless, the Tribunal specifically considered the exercise of the discretion pursuant to s.426A of the Act, and decided to proceed with the hearing in their absence ([25] – [26] at CB 207). The Tribunal, in my view, gave an intelligible and reasonable justification for its decision to proceed without giving the second and third applicants a further opportunity to appear before it. No arguable case arises if that is the complaint of procedural unfairness that the ground seeks to raise.

36. A third element in the ground, as the Minister has, in my view, again properly identified, is a complaint that the Tribunal failed to take into account relevant considerations.  Again, these are not identified, and nor is there anything in the evidence before the Court to indicate that the Tribunal fell into any error. There is nothing in the evidence before the Court to indicate that the Tribunal failed to consider, or to take into account, any relevant consideration, as it may have been obliged to do so by the statute (Minister for Aboriginal Affairs v Peko Wallsend Ltd[1986] HCA 40; (1986) 162 CLR 24).

1. Nor, for that matter, is there any arguable case to say that the Tribunal failed to consider any claim made by the applicant, either expressly or clearly arising on the material presented (Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593, Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244, NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1 and Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389). In fact, in this case, it is clear the Tribunal even took steps to ensure whether claims made in earlier, and separate, applications by the first applicant, were continued to be pressed by him in the second protection visa application ([61] at CB 214 to CB 215 to [62] at CB 215).

2. In all, there is no arguable case for the relief that the applicants seek arising from the ground of the application to the Court. It is the case that at a show cause hearing the applicants are confined, pursuant to r.44.13 of the FCC Rules, to the grounds of the application, and the relief that they seek.

3. However, I did consider whether it was in the interests of justice to dispense with the application of that rule, pursuant to r.1.06 of the FCC Rules. In that light, I had regard to what the first applicant said to the Court today, which in large part appeared to raise matters not discernible in the ground as pleaded.

4. The first applicant said that the Tribunal pre-judged his case. When he sought to explain that further, it appeared that the complaint related to the delegate, and that the delegate had not given him “much opportunity” to make his “statements”. 

5. The Court has no jurisdiction to review the delegate’s decision in the circumstances of this case. That is, where the delegate’s decision was reviewable by the Tribunal and, in fact, was reviewed by the Tribunal (s.476(2) of the Act).

6. But in any event, if what the first applicant also meant was that the Tribunal had pre-judged this case, because it just followed what other Ministerial delegates and Tribunal members found in relation to his credit, then I rely on what is relevantly set out above. No arguable case arises with that complaint. 

7. The first applicant also complained that the Tribunal asked him questions with what I understood him to describe as a “mocking smile”. This made him feel nervous.  Again, there is no evidence before the Court to support that submission.  Without evidence, there is no basis to say that an arguable case can arise because of any facial feature or gesture that may, or may not have, been exhibited by the Tribunal member.  Also, there is nothing on the material that is before the Court to say that the first applicant made any complaint, at the relevant time, about the conduct of the hearing. At that time, the first applicant was represented by a registered migration agent.  There is also no evidence of any complaint subsequent to the hearing. 

8. The third complaint was that the first applicant tried to provide a “piece” of evidence to the Tribunal, and the Tribunal refused to give him the opportunity.  While it was not clear, it appears that this complaint may have related to the first applicant’s explanation as to why he used a different name in his first application for a protection visa.

9. Again, there is no evidence before the Court to support this submission.  There is no transcript of the Tribunal hearing to support the claim that the first applicant tried to produce, presumably, some document, whatever the document was, to the Tribunal at the hearing, and was denied the opportunity to give the document to the Tribunal. 

10. In any event, the issue of the first applicant’s use of another name, whether a “nickname” or otherwise, in his first protection visa application was raised at the Tribunal hearing. On the evidence before the Court, the first applicant was given the opportunity to explain the difference between the two names that he used in his two different applications for protection visas. No arguable case is indicated by that complaint. 

11. The fourth matter raised by the first applicant is that the Tribunal used “the results” from before, which he said was his first application for a protection visa. I have already addressed this above. In terms of his credibility, as set out above, the Tribunal gave, as I have repeatedly said, comprehensive reasons as to why it reached its own independent view, as to the first applicant’s lack of credibility. 

12. The fifth complaint was that the Tribunal “ignored” the claim that “Government officials” had some “underground” connections, and could take action against him. Again, I cannot see, on the evidence that is before the Court, that the Tribunal failed to deal with any claim, or any aspect of a claim, to fear harm, as raised by the first applicant either before the Tribunal, or in previous applications for protection visas. 

13. I also note, as the Minister submitted today, on the relevant evidence, that is, the Tribunal’s hearing record, the hearing lasted for nearly three hours. There is nothing to say that the first applicant was denied any opportunity to present his case due to any short, or abbreviated, hearing. 

14. In all, the first applicant’s complaints before the Court were various attempts to express his grievance with the Tribunal’s finding that he was not a witness of truth.  Ultimately, as I tried to explain to the first applicant, whether the Court was to form a different view, does not matter.  It cannot assist him.  The question is whether it was reasonably open to the Tribunal to come to the conclusion that it did on what was before it. Further, whether it was reasonably open to the Tribunal to make each of the findings of fact that informed its conclusion as to the credibility of his claims. On any plain, let alone a fair reading, it was reasonably open for the Tribunal to come to that conclusion. The Tribunal gave cogent reasons for its conclusion. 

15. In all, therefore, I cannot see any need in the interests of justice, to dispense with the application of r.44.13 of the FCC Rules. It is appropriate that the application to the Court be dismissed. I will make that order.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date:  27 November 2017